Southern California -- this just in

Prop. 8 analysis: Does Prop. 8 violate equal-protections clause?

December 6, 2010 | 12:47
pm

A federal appeals court on Monday began hearing arguments on the constitutionality of Prop. 8, California's ban on same-sex marriage. Barry P. McDonald, a professor at the Pepperdine School of Law, said a Colorado case is key. Here's an analysis he provided to The Times:

Both Judges Reinhardt and Hawkins are focusing on the question of whether Prop. 8 is constitutional under the Supreme Court's prior decision in Romer vs. Evans.

In Romer, the U.S. Supreme Court said that a Colorado initiative which stripped gay persons of special protections under municipal anti-discrimination laws related to employment, etc., violated the federal equal protection clause. Thus, the judges are asking, isn't this case the same because the California Supreme Court decided that there was a right of same-sex marriage that Prop. 8 took away?

One view is that this case is the same, and that the people of California acted with "animus" (as the Supreme Court said of the Colorado voters in Romer) and intended to harm gay people by enacting Prop. 8 because of their moral disapproval of same-sex relationships. Another view is that this case is different because the people of California have already given same-sex couples all rights and obligations of marriage except the formal name, and thus evidence no dislike of same-sex couples or desire to harm them, but simply wish to proceed cautiously or experimentally before fully changing the traditional institution of marriage.

Which view will prevail will likely be influenced by the ideological proclivities of a particular judge, and at least at this stage of appeals it seems from the questioning that there are at least two of the three judges who adopt the former view.